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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Kariharan & Anor, R (on the application of) v Secretary Of State For Home Department [2002] EWCA Civ 615 (15 April 2002) URL: http://www.bailii.org/ew/cases/EWCA/Civ/2002/615.html Cite as: [2002] EWCA Civ 615 |
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IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(MR JUSTICE STANLEY BURNTON)
Strand London WC2A 2LL Monday 15 April 2002 |
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B e f o r e :
LORD JUSTICE DYSON
____________________
T H E Q U E E N | ||
(On the application of KANAGASINGAM KARIHARAN and | ||
KANAGARATNAM KONESWARAN) | ||
- v - | ||
THE SECRETARY OF STATE FOR THE HOME DEPARTMENT |
____________________
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040 Fax: 020 7831 8838
Official Shorthand Writers to the Court)
appeared on behalf of the Appellant
MR ROBIN TAM (Instructed by The Treasury Solicitor, London, SW1H 9JS) appeared on behalf of the Respondent
____________________
Crown Copyright ©
"A person who alleges that an authority has, in taking any decision under the Immigration Acts relating to that person's entitlement to enter or remain in the United Kingdom .... acted in breach of his human rights may appeal to an adjudicator against that decision....
(2) For the purposes of this Part ....
(b) an authority acts in breach of a person's human rights if he acts, or fails to act, in relation to that other person in a way which is made unlawful by section 6(1) of the Human Rights Act 1998."
"(1) Subject to schedule 2
(a) the new appeals provisions are not to have effect in relation to events which took place before the 2nd October 2000 and notwithstanding their repeal by the provisions of the 1999 Act commenced by this Order, the old appeals provisions are to continue to have effect in relation to these events...."
"For the purposes of Article 3, an event takes place when -
(a) a notice is served;
(b) a decision is made or taken;
(c) directions are given; and
(d) a certificate is issued."
"Section 65 (human rights appeals) is not to have effect where the decision under the Immigration Acts was taken before 2nd October 2000."
"On 20 March in another place my noble friend, Lord Bassam, in reply to a question from Lord Lester of Herne Hill, clarified the position of asylum seekers who wished to make a human rights claim under section 65 of the Immigration and Asylum Act 1999. He confirmed that people appealing against immigration decisions made before 2 October 2000 cannot benefit from this appeal right which is not retrospective. But they could make a separate human rights claim and would have the opportunity to appeal except in those instances where the human rights issue had already been considered by the appellate authority or the courts, or there had been findings of fact at an earlier appeal which mean the human rights claim is bound to fail.
However, it has been decided that the exception should not apply to people who had an appeal pending or could have lodged appeals in time to the immigration appeals authority on 2 October 2000. If they make a human rights claim and it is rejected they will be able to make an allegation and we will then give them an opportunity to appeal to the immigration appeals authority."
"There were in any event rational justifications for the policy. It distinguishes between those whose human rights claims had been considered (albeit in the context of their asylum applications) and finally rejected by the independent appeals procedure and those whose claims had not been finally determined, or whose claims involved issues or facts that were not the subject of the pre-2 October 2000 appeal determinations. There is a public interest in preventing the reopening or duplication of appeals, which is not only costly in time and money but delays the allocation of resources to, and the determination of, other cases."